Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 05, 2023

CASE NO(S).: OLT-22-002736

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Appellant: Jianbin Wang

Subject: Appeal of Refusal of Permit for Construction

Property Address: 480 Coverdale Road (Rockcliffe Park Heritage Conservation District)

Legal Description: PART OF LOT E ON PLAN 4M-61; PART OF DEVONSHIRE ROAD, AS CLOSED BY JUDGES ORDER LT30380 BEING DESCRIBED AS PARTS 1 AND 2 ON PLAN 4R-33510; SUBJECT TO AN EASEMENT AS IN LT30380; ROCKCLIFFE PARK

Municipality: City of Ottawa

OLT Case No.: OLT-22-002736

OLT Lead Case No.: OLT-22-002736

OLT Case Name: Wang v. Ottawa (City)

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Kim Ratushny

Request for: Request for an Order Awarding Costs

Costs sough against: Jianbin Wang

Heard: In writing

APPEARANCES:

Parties Counsel

Kimberly Ratushny Katie Black

Jianbin Wang Philip Osterhout Crystal McConkey

DECISION DELIVERED BY C. HARDY and ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal arises out of a written motion for costs (“Motion”) pursuant to Rule 23 of the Tribunal Rules of Practice and Procedure (“Rules”) brought by Kimberly Ratushny (“Moving Party”). The Motion was brought following the withdrawal of an appeal prior to the hearing on the merits being conducted.

2By way of background, these proceedings originated pursuant to an appeal brought by Jianbin Wang (“Appellant”) under s. 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (“OHA”) in relation to the City of Ottawa’s (“City”) refusal to grant a heritage permit that would permit the construction of a single detached dwelling at 480 Cloverdale Road (“Subject Property”). The Subject Property is located in the Rockcliffe Park Heritage Conservation District (“RPHCD”) which is designated under Part V of the OHA.

3The Appellant’s original application came before the City’s Built Heritage Sub-Committee (“BHSC”) on November 30, 2021 (“Original Application”) with a supportive staff report recommending minor modifications. The BHSC deferred its decision to allow the Appellant time to incorporate the recommendations from staff.

4On February 8, 2022, the Appellant provided a re-submission (“Re-submission”) which went before BHSC along with a staff report recommending refusal. BHSC recommended refusal of the Re-submission and City Council refused the Re-submission application at its meeting held on February 23, 2022.

5On March 22, 2022, the Appellant appealed City Council’s refusal to this Tribunal. On June 22, 2022, the Tribunal held its first Case Management Conference (“CMC”) wherein the Moving Party and Michael Kelen were individually granted Party status, which was opposed by the Appellant and received no objection from the City. On September 23, 2022, the Tribunal held a second CMC wherein Mr. Kelen’s Party status was transferred provisionally to the Rockcliffe Park Residents Association (“RPRA”) pending proof of incorporation, which was received by the Tribunal following the second CMC. On December 2, 2022, the Tribunal held its third CMC wherein Party status was transferred to RPRA on consent, a five (5)-day hearing was scheduled and the Procedural Order to govern the proceedings was approved.

6The Appellant and the City engaged in continued discussions in an attempt to scope or resolve outstanding issues. Through this process, a revised design was prepared and on March 22, 2023, the Parties were advised that the Appellant intended to file a new application with the City based on the revised design. The Appellant requested that the appeal be adjourned sine die which was consented to by the City and opposed by the Moving Party and RPRA. Subsequently, the Appellant made an adjournment request of the Tribunal and on April 11, 2023, the Tribunal notified the Parties that it would not grant the adjournment request and any such request would have to proceed by way of a Motion to Adjourn. On April 12, 2023, the Appellant withdrew the appeal.

7On April 12, 2023 Counsel for the Moving Party wrote to the Tribunal advising of her client’s intention to seek costs against the Appellant. The Tribunal directed that the matter of costs be determined by way of the present written Motion in accordance with Rule 23 of the Rules.

8The Tribunal notes that the City and the RPRA did not participate in the Motion.

MATERIALS CONSIDERED

9The following materials were before the Tribunal for consideration:

• Cost Submissions of the Moving Party, Kimberly Ratushny dated May 24, 2023, including invoices;
• Appellant Response to Motion for Costs dated June 9, 2023, including Affidavit of Taylor Stanton, sworn June 9, 2023, Affidavit of Philip Osterhout, sworn June 9, 2023 and Applicant Book of Authorities;
• Reply Submissions of the Moving Party, including Affidavit of Kimberly Ratushny, sworn June 26, 2023 and Book of Authorities of the Respondent/Opposing Party.

10While not raised by Counsel for the Appellant, the Tribunal notes that the Moving Party did not include an affidavit in the originating documents to support the request for costs as is required by the Rules. Notwithstanding the deficiency in the submissions, the Tribunal will consider whether it will exercise its discretion to award costs in this case.

STATUTORY FRAMEWORK

11The Tribunal’s statutory authority to award costs is set out in s.20 of the Ontario Land Tribunal Act S.O. 2021, c. 4, Sched. 6 (“OLTA”) and is consistent with the Statutory Powers Procedure Act R.S.O. 1990, c. S. 22, as amended. Section 20 of the OLTA sets out the following:

The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs in accordance with the rules.

12Rule 23.9 and 23.10 of the Rules limit the Tribunal’s discretion and provide the following guidance:

Rule 23 Costs 23.9 Circumstances in Which Costs Order May be Made The Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith. Clearly unreasonable, frivolous, vexatious or bad faith conduct can include, but is not limited to:

a) failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal;

b) failing to give notice without adequate explanation, lack of co-operation with other parties during the proceedings, changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned or included in a procedural order;

c) failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;

d) a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

e) failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

f) failing to make reasonable efforts to combine submissions with parties of similar interest;

g) acting disrespectfully or maligning the character of another party;

h) knowingly presenting false or misleading evidence; or

i) breaching a confidentiality requirement of a mediation, settlement conference or of a decision of the Tribunal in the hearing of the merits.

The Tribunal is not bound to order costs when any of these examples occur as the Tribunal will consider the seriousness of the misconduct.

23.10 Powers of Tribunal The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to a proceeding and direct payment be made by a certain date by order.

MOVING PARTY’S POSITION AND GROUNDS FOR COSTS

13The Moving Party seeks costs payable by the Appellant in the amount incurred as of the date of preparation of the Motion submissions. The Moving Party provided alternative amounts, allowing the Tribunal to make certain findings as to entitlement, as follows:

a) $41,838.97 on a full indemnity basis; or

b) $29,431.91 on a partial indemnity basis; or

c) $35,635.13 on a substantial indemnity basis

14In support of the requested relief, it is submitted that the Moving Party incurred significant legal and consultant costs to respond to an appeal “…that had no reasonable prospect of success given the express limits on mass and height imposed by the Rockcliffe Park Heritage Conservation District Plan…”. The Moving Party pointed out the following conduct in support of the request for costs:

• the Appellant withdrew his appeal within seven weeks of the commencement of the hearing;
• the Appellant’s appeal had no reasonable prospect of success; and
• the unreasonable conduct of the Appellant;

15The thrust of the Moving Party’s position is that the Appellant acted unreasonably by pursuing an appeal that had no reasonable prospect of success. It was submitted that the Appellant was given additional time by the City in November 2021 to bring the Original Application into compliance with the RPHCD Plan but instead, his Re-submission brought the proposal “…further out of compliance”.

16The Moving Party argued that the Appellant was unreasonable in bringing an appeal to the Tribunal that was not in compliance with the mass and height limitations set out in the RPHCD Plan. The Moving Party relied on the decision in Ainsworth v. Haliburton (County) 2017 CanLII 11521 (ON LPAT) (“Ainsworth”) where the Tribunal found that appellants must understand that there are obligations associated with bringing an appeal and the Tribunal can conclude that “…the appellant has considered the following matters: the merits of the appeal; the evidence to be called; the chance of success; the expense that will have to be carried by all sides in terms of time and money; and the risk of costs”.

17The Moving Party argued that the Appellant knew since November 2021 that his proposal was not in compliance with the RPHCD Plan. The Moving Party referred to a number of instances where the City and the opposing Parties pointed out to the Appellant how and why his appeal had no reasonable prospect of success. Further, it was argued that the Appellant’s withdrawal to pursue a new design application is a tacit admission that his Re-submission was not in compliance.

18Subsequent to expending substantial effort and expense, the Moving Party submitted that the Appellant withdrew his appeal in April 2023 in an attempt to “leave by a side door” to avoid an unsuccessful outcome. The Moving Party cited Kawaguchi v. Kawa Investments Inc., 2021 ONCA 770 (“Kawaguchi”) to support the argument that once the appeal had progressed beyond a certain point, an Appellant cannot discontinue a proceeding without the consent of all Parties and in the absence of such consent, is at risk of being liable for costs. In this case, the Procedural Order was in place requiring Parties to expend time and resources to retain experts and prepare for a hearing. The Moving Party argued that the Appellant sought the consent of the Parties to adjourn the appeal sine die only after the Parties were obligated to retain experts and incur some costs preparing for a hearing. When the Appellant was unable to garner consent from all Parties, he withdrew the appeal.

19The Moving Party submitted that Parties are expected to be respectful of the adjudicative process and the resources of other Parties and the Tribunal. The Tribunal should order the requested relief to compensate the Moving Party for time, effort and money expended to defend an appeal that had no reasonable prospect of success. The Appellant was repeatedly advised that his Original Application and Re-submission did not comply with the RPHCD Plan and despite this, he continued to pursue the appeal. The Moving Party cited Ainsworth in support of the argument that the Appellant should be accountable for his unreasonable conduct in pursuing an appeal without merit and causing Parties to incur expenses in terms of time and money.

APPELLANT’S RESPONSE

20In his response, the Appellant requests that the Tribunal dismiss the Motion and order the Moving Party to pay the Appellant’s costs of responding to the Motion in the amount of $5,688.00.

21The Appellant argued that the Moving Party’s Motion rests on the fact that the Appellant withdrew his appeal prior to the commencement of the hearing. It is submitted that the Tribunal does not routinely order costs and in becoming a Party to the appeal, the Moving Party should not have had any expectation of recovering her costs in this forum. The Appellant referred to Nikmanesh v. King (Township), 2019 CarswellOnt 587 (“Nikmanesh”) where the Tribunal referenced a body of case law addressing costs and set out additional guidance on the types of conduct that would be considered “frivolous”, “vexatious” or “unreasonable”. The Appellant cited Nikmanesh arguing that Parties should not have an expectation of recovering costs as public participation in the planning process should not be discouraged when undertaken in good faith.

22In his submissions, the Appellant argued that he withdrew his appeal immediately after being notified that the Tribunal would not grant his requested adjournment, which was 7 weeks and 5 days prior to the commencement of the hearing. His conduct was reasonable as his withdrawal was prior to the dates set in the Procedural Order for, among other things, the exchange of witness statements, holding of expert meetings and the preparation of a joint document book.

23In his submissions, the Appellant cited Rule 23.9 of the Rules and a body of case law arguing that the Tribunal considers each case on its own merit and has awarded costs when a Party needs to be held accountable for conduct considered unreasonable, vexatious or frivolous (Nikmanesh). The Appellant responded to the Moving Party’s reliance on Kawaguchi distinguishing it for two reasons. It contemplated a civil action as opposed to a Tribunal appeal where discretion to award costs is not a presumed outcome but is guided by the Tribunal’s Rules and practices. Secondly, Kawaguchi was a case of plaintiff against defendant, whereas in this case, the Moving Party sought to participate in the proceedings rather than being compelled to do so.

24The Appellant submitted that the Moving Party premised the Motion on the fact that the Appellant’s appeal was unreasonable as it had no reasonable prospect of success. The Appellant argued that a costs motion is not the appropriate forum to argue the merits of the appeal and the Moving Party should have brought a motion for dismissal if this was her primary concern.

ANALYSIS AND FINDINGS

25As a starting point, costs are rarely awarded in Tribunal proceedings and are dependent upon the facts in each particular case. In order to attract an award of costs, the Tribunal must find that the conduct of a party has been unreasonable, frivolous, vexatious or in bad faith. The type of conduct is disjunctive, and Rule 23.9 makes it clear that the decision to award costs is discretionary.

26For the reasons and findings set out below, the Tribunal will not exercise its discretion to award costs in this instance. The Tribunal acknowledges that the Moving Party requested costs both as a self-represented lawyer and for legal Counsel. However, since the Tribunal has decided not to award costs in this Motion, it will not comment on the costs incurred by self-represented lawyers.

27Much of the Moving Party’s argument focused on the fact that the Appellant’s appeal had no reasonable prospect of success, however, this is not a relevant consideration in this Motion. The Moving Party appears to mistakenly attribute the meaning of reasonable to the appeal as opposed to the conduct of a party. The Tribunal must determine whether a Party to a proceeding has acted unreasonably and/or demonstrated any type of clear misconduct which rises to the level of the non-exhaustive list of examples set out in Rule 23.9. The Rules focus on the conduct of a Party in a proceeding, not whether the appeal is reasonable or will be successful. As this Tribunal has consistently found, it is a rare and extraordinary circumstance that such conduct will rise to the high threshold required for the Tribunal to exercise its discretion.

28Both Parties presented extensive argument, including exhibits, regarding submissions made and conduct displayed during the BHSC meetings (including but not limited to the proximity of the proposal to the Chinese embassy). These submissions were not given any weight by the Tribunal as they do not assist the Tribunal in assessing conduct displayed during the Tribunal proceedings. In assessing whether to exercise its discretion to award costs, the Tribunal will look at conduct during a Tribunal proceeding, not conduct during the public process leading up to an appeal.

29The Tribunal will not consider nor place any weight on the Moving Party’s evidence and submissions arguing the merit of the Re-submission application. The arguments relating to mass and non-compliance with the RPHCD Plan were not of assistance in making findings relating to an award of costs. It is the conduct of Parties leading up to and during a hearing event that could lead to an award of costs, not whether the appeal had a reasonable prospect of success. Further, the Tribunal did not place any weight on the Moving Party’s argument in her Reply submissions relating to the Appellant’s new heritage permit application that is currently being considered by the City. This Motion is for costs related to the appeal of the Re-submission and any subsequent applications are not properly before this Tribunal for consideration.

30The Moving Party’s Motion does not recognize that the Tribunal’s approach to costs is reflective of its administrative function, which differs from the approach taken by the Courts. The Tribunal’s practices and procedures encourage public participation in the planning process and as such, costs awards must be approached with care to avoid a “chilling effect”, and the Tribunal and its predecessors have consistently been mindful of this.

31The Tribunal finds that the Moving Party did not present any evidence to demonstrate that the Appellant, his Counsel or his Consultants acted unreasonably or in bad faith during the course of the Tribunal proceedings. Based upon the evidence and submissions presented, the Tribunal finds that the Parties acted efficiently in progressing the matter. The Tribunal agrees with the Appellant that a motion for costs is not the correct format to raise a claim that an appeal is unreasonable or has no reasonable prospect of success. Rather, claims of this nature would have been properly put forward in a motion for dismissal in advance of the merit hearing, or during the hearing itself.

32The Tribunal does not find that the Appellant acted unreasonably or in bad faith. The Appellant engaged in continued discussions with the City throughout the proceedings in an attempt to settle and/or scope outstanding issues, which the Tribunal is supportive of and encourages Parties to do. Punishing a Party with costs in such an instance flies in the face of the Tribunal’s practice of encouraging Parties to resolve disputes among themselves through continued discussions and negotiations. It would be counter-intuitive for the Tribunal to dissuade Parties from this practice by awarding costs against a Party who has been working with an approval authority to resolve issues. An award of costs in such a situation would deter attempts Parties make to settle their appeals.

33With respect to the timing of the withdrawal, the Appellant withdrew his appeal after becoming aware that the added Parties would not consent to an adjournment and subsequently being advised that the Tribunal would not grant the adjournment request in the absence of a Motion to Adjourn. The Tribunal accepts that the Appellant provided notice of the withdrawal in a timely manner and prior to most of the deadlines set out in the Procedural Order. While expenses were incurred by all Parties in preparation for a hearing which ultimately would not take place, the Moving Party ought to have had the expectation that they would incur some costs when seeking Party status. Further, the Moving Party ought to have known the Tribunal’s approach to costs and the high threshold of sanctionable conduct required to trigger the Tribunal using its discretion to award costs. As such, the Moving Party should not have had any expectation to recoup any costs incurred during the proceedings, whether the hearing had taken place or not.

34The Moving Party asserted that the motivation behind the withdrawal was the Appellant attempting to “leave by a side door” to avoid an unsuccessful outcome and was a tacit admission that his Re-submission was non-compliant. The Tribunal is not in a position to speculate on motivations behind decisions to withdraw appeals, nor is it in a position to speculate on the result of an appeal if it had proceeded as scheduled.

35Similarly, based upon the evidence or lack thereof, the Tribunal does not find that the conduct of the Moving Party rose to the high threshold required to warrant an award of costs. The Tribunal will not exercise its discretion to award costs against the Moving Party for the Appellant’s costs incurred to respond to the Motion. The Tribunal was not presented with any evidence demonstrating that the Moving Party acted unreasonably or in bad faith in her pursuit of the Motion.

36Having considered all of the evidence, submissions and authorities presented by the Parties, the Tribunal finds that a reasonable person would not conclude that the Appellant’s conduct constitutes unreasonable, frivolous, vexatious or bad faith conduct. Nor does the conduct of the Moving Party in bringing the Motion rise to the high threshold required for the Tribunal to invoke its discretion. As such, no award of costs is warranted against either the Appellant or the Moving Party.

ORDER

37THE TRIBUNAL ORDERS that the application for costs is denied and no costs are awarded.

38THE TRIBUNAL FURTHER ORDERS that the request for costs made by the Appellant is denied and no costs are awarded.

“C. Hardy”

c. hardy

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.